Jones v. Gibbs

8 In each of these causes defendants in error have filed, after decision of the cause and the filing of motion for rehearing by plaintiff in error but before disposition of the motion for rehearing, a motion praying for dismissal of the case on account of the failure of plaintiff in error to file a bond upon the granting of writ of error and, in the alternative, for the entry of an order requiring plaintiff in error to file such bond.

When the writs of error were granted the court inadvertently failed to make orders requiring plaintiffs in error to file bonds and specify the amounts thereof in accordance with the requirements of Article 1747 of the Revised Civil Statutes of 1925, as amended in 1930. While Article 2276 of the Revised Civil Statutes provides that executors, administrators and guardians shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity, it has been held that it was not intended by said article, which is found in a chapter of the statutes relating exclusively to appeals and writs of error from the trial court to the Court of Civil Appeals, to lay down a rule as to writs of error from the latter courts to the Supreme Court, and that the provision governing in cases of writs of error to the Supreme Court is found in Article 1747, which does not exempt executors, administrators or guardians from compliance with its requirements. Daniel v. Mason, 90 Tex. 162, 37 S.W. 1061.

The motions to dismiss are overruled. However, an order will this day be entered in each of these causes requiring the plaintiff in error within ten days from this date to file in the trial court a bond in the sum of $100.00 and to cause a certified copy of the same within said time to be transmitted to the clerk of this court, as provided by said Article 1747.

Delivered October 11, 1939.

Rehearing overruled October 25, 1939.